John Syekei and Ariana Issaias at Bowmans offer tips on intellectual property protection in Kenya
Until recently, intellectual property was not a priority for investors seeking their nest of golden eggs in Africa. That is changing amid the growing realization that by taking care of intellectual property issues sooner rather than later, investors can avoid being tripped up by unforeseen obstacles. In this regard, awareness is key.
OWNERSHIP FROM THE OUTSET
The concept of paying for, or even requiring legal services is still relatively novel and most individuals or entities think they can “get by” without obtaining legal advice. The problem is that many grassroots entities and small and medium enterprises draw on free favours from acquaintances to develop their underlying software. This can complicate efforts down the line to determine ownership of the relevant intellectual property rights in the underlying IT system.
In Kenya, the law provides that the ownership of any copyright created by an employee or consultant commissioned to do such work vests with the employer or commissioner. In the absence of any agreement or consideration, however, and as in most parts of the world, the copyright will vest with the original developer. As the years pass and as the product becomes more successful, some investors find themselves in protracted negotiations with the declared owner. Full due diligence at the outset will save time and effort, especially when investing in technology companies.
JOHN SYEKEI is a partner at Bowmans in Nairobi where ARIANA ISSAIAS is a lawyer.